THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JS 358/24
In the matter between:
THAKUDI MOTSAPI Applicant
and
TRANSNET FREIGHT RAIL Respondent
(Excipient)
Heard: 6 November 2025
Delivered: 30 March 2026
JUDGMENT
PHAJANE, AJ
Introduction
[1] This matter concerns an exception raised by the Respondent against the
Applicant’s statement of claim. In summary, the Applicant’s case entails a claim
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for alleged discrimination and or harassment . The claim is brought in terms of
the Employment Equity Act1 (the EEA).
[2] The Respondent contends that the statement of claim lacks the necessary
averments to sustain a cause of action for unfair discrimination as contemplated
in section 6 (1) and section 6 (3) of the EEA.
[3] The Respondent accordingly seeks an order upholding the exception and that
the Applicant’s statement of claim be struck out. A cost order is also sought.
Background
[4] The Applicant is an employee of the Respondent . Prior to the events giving rise
to this claim, the Applicant lodged a grievance against the Respondent
concerning his bursary application for an LLB course.
[5] The event complained of occurred during a Microsoft Teams meeting held on 8
and 9 February 2024. In the statement of claim the Applicant alleges in broad
terms that the Respondent’s conduct constitutes discrimination and harassment
in that he was victimized during a Microsoft Teams meeting when an employee
of the Respondent , Mr. Roggers Mamaila, allegedly discussed the Applicant ’s
grievance against the Respondent concerning his bursary application for an LLB
course2.
[6] The Applicant pleads that Mr. Mamaila made the following statements, which are
alleged to have “ parturiated in the harassment and or victimization of the
Applicant”3:
6.1. “we are having extra murals, once you start seeing people instead of
applying to do risk assessment, they start applying to do LLB, then you
1 Act 55 of 1998.
2 SOC, para 6.3
3 SOC at para 6.9
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must know they want to go and start negotiating cases with lawyers in
court this is the route this takes”4.
6.2. “instead of writing there that you do not know how to do a proper fire
inspection in your IDP that will assist you to go to a course you write there
that you want to do LLB or safety course…what do you do with a safety
course? Or do you do it because it is the easy one without mathematics in
it? That is the worry colleagues…” 5
6.3. “This thing of you taking managers out of action to go sit at the CCMA and
toy toying because someone wants to do law or someone want to be a
pilot and the manager declined a bursary, and you are fighting is
nonsense. Check it because I am asking you nicely because you are
putting one another under the bus, at the end of the day the employee
won’t win something like that, you are just a waste of time, managers
hands are bound behind their back for too long for nonsense- nonsense
stuff.”6
[7] Following this meeting, the Applicant engaged in email correspondence with Mr.
Mamaila, asserting that in saying what he is alleged to have said above, Mr.
Mamaila discussed his grievance which had caused him to feel “ victimized,
prejudiced, fear, harassment, and degraded” 7. The Applicant requested access
to a digital recording of the meeting, which Mr. Mamaila declined.
[8] Subsequently, the Applicant pursued an internal grievance against Mr. Mamaila
for harassment and/or victimization. The Applicant alleges that the Respondent
failed to properly adhere to its own Transnet Grievance Policy.
4 SOC at para 6.9(1)
5 SOC at para 6.9(2)
6 SOC at para 6.9(3)
7 SOC annexure “RM”
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[9] Dissatisfied, the Applicant referred a dispute to the Commission for Conciliation,
Mediation and Arbitration (CCMA), where the alleged dispute was certified. Then
Applicant referred the unresolved dispute to this Court for adjudication.
[10] The Respondent delivered a notice of intention to defend and thereafter, a notice
of exception on the basis that the allegations contained in the statement of claim
consist of law and do not set out the material facts necessary to establish a
legally sustainable cause of action.
Grounds of the Exception
[11] The specific grounds upon which the Respondent relies in support of its
exception are outlined below. Respondent submits that the Applicant has failed
to plead the essential elements of the alleged causes of action in that:
11.1. The Applicant fails to allege how the Respondent ’s conduct constituted
unfair discrimination under section 6 of the EEA.
11.2. The Applicant’s claim is devoid of any of the listed grounds of
discrimination as required under section 6(1) of the EEA.
11.3. The Applicant’s claim concerning a contravention of the code is bad in
law.
11.4. The Applicant has failed to plead a discharge of the onus of proof.
Legal Principles and Analysis
[12] An exception is a legal objection to pleadings on the basis that, even if the facts
pleaded are accepted as correct, the pleadings are so vague and embarrassing
that an intelligible cause of action is not disclosed.
[13] As a starting point, whether or not the Applica nt’s statement of case is excipiable
is to be determined by reference to r ule 11 of the Rules for the Conduct of
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Proceedings in the Labour Court 8. Rule 11 (b) requires the names, descriptions
and addresses of the parties, no more than a party referring a statement of c laim
to record in a concise manner the relevant facts on which the party relies, also in
concise terms, the legal issues that arise and the relief sought. In the absence of
any directive to the contrary, this is all that is required, and the standard against
which any pleading is to be measured9.
[14] In Harmse v City of Cape Town 10, Waglay J (as he then was) said, inter alia, the
following:
‘5. Rule 6 of the Rules of this Court deals with referrals of disputes by way of
a statement of claim. Rule 6(1)(b) provides that:
‘(1) a document initiating proceedings, known as a ‘statement of
claim’…
(b) must have a substantive part containing the following information:
i. The names, description, and address of the parties;
ii. A clear and concise statement of the material facts, in
chronological order, on which the party relies, which
statement must be sufficiently particular to enable any
opposing party to reply to the document;
iii. A clear and concise statement of the legal issues that
arise from the material facts, which statement must be
sufficiently particular to enable the opposing party to reply
to the document; and
iv. The relief sought.
8 Rules Regulating the Conduct of the Proceedings of the Labour Court. Published 3 May 2024 (GN
50608). Effective 17 July 2024.
9 See: Liquid Telecommunication (Pty) Ltd v Carmichael-Brown [2018] 8 BLLR 804 (LC).
10 [2003] 6 BLLR 557 (LC) at para 5.
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[15] The Applicant bears the onus of demonstrating that on every reasonable
interpretation of the pleading, no cause of action is disclosed 11. Care must be
taken to distinguish the facts which must be proven in order to disclose the cause
of action from the facts necessary to prove them. The determination of the latter,
in each particular case, is essentially a matter of substantive law rather than
procedure.
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[16] The Court is to take as true the allegations pleaded by the Applicant and to
assess whether they disclose the cause of action13.
[17] The Applicant’s claim is premised on an alleged breach of section 6(3) of the
EEA. Section 6(3) of the EEA provides that harassment of an employee is a form
of unfair discrimination and is prohibited on any one, or combination, of the
grounds listed in section 6(1)”.
[18] The point of departure, thus, is the proper interpretation of section 6(1) and 6(3)
of the EEA and an application of that proper meaning to the parties’ respective
averments to determine whether a cognizable cause of action has been pleaded.
[19] Section 6(1) of the EEA provides that:
“No person may unfairly discriminate, directly or indirectly, against an employee,
in any employment policy or practice, on one or more grounds, including race,
gender, sex, pregnancy, marital status, family responsibility, ethnic or social
origin, color, sexual orientation, age, disability , religion, HIV status, conscience,
belief, political opinion, culture, language, birth or on any arbitrary ground”.
[20] To sustain a claim based on harassment under section 6(3), the Applicant must
plead facts establishing conduct that constitutes harassment and demonstrate
that such conduct is linked to a prohibited ground contemplated in section 6(1) of
the EEA. Accordingly, harassment, for purposes of section 6(3), does not exist in
11 See: Odendaal v Van Oudtshoorn 1968 (3) SA 433 (T) 436D -E; First National Bank of Southern Africa
Ltd v Perry NO 2001 (3) SA 960 (SCA)
Ltd v Perry NO 2001 (3) SA 960 (SCA)
12 See: Alphedie Investments (Pty) Ltd v Greentops (Pty) Ltd 1975 (1) SA 161 (T).
13 Drummond Cable Concepts v Advancement (Pty) Ltd 2020 (1) SA 546 (GJ) at para 7
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the abstract. It must be conduct that is connected to one or more of the
prohibited grounds listed in section 6(1), or an analogous arbitrary ground.
[21] In Ndudula and others v Metrorail – PRASA (Western Cape)14, the Labour Court
considered an averment that a difference in wages paid to new employees, albeit
in error, amounted to unfair discrimination pursuant to section 6(1) of the EEA.
The applicants in that matter took the stance that if they relied on the phrase “any
other arbitrary ground,” it was unnecessary to specify a ‘ground’ and it was
sufficient to describe conduct which was inherently arbitrary. The Court held that
the complaint did not articulate a “ground” within the compass of section 6(1).
The Court held that:
“[73] The crux of the test for unfairness is the impairment of human dignity or
an adverse effect in a comparably similar manner, not the classification of
the ground as listed or unlisted. The constitutional distinction between
listed and unlisted grounds affects only the burden of proof and nothing
else. Differentiation on both a listed and analogous ground amounts to
unfair discrimination only if the differentiation has indeed affected human
dignity or has had an adverse effect on a similar serious consequence.
[74] This means that the test for unfair discrimination is the same for
differentiation on both listed and unlisted grounds. That being the case
unfair discrimination on listed and unlisted grounds, respectively, are not
different forms of discrimination. The Constitution does not render
differentiation on a listed ground automatically unfair.
…
[76] The conclusion to this reasoning is that unfair discrimination may occur
on a listed or unlisted ground. The common factor is that differentiation
must affect human dignity or must have similar serious consequences.
The distinction between listed grounds and analogous grounds is one that
finds application only with regard to the burden of proof, both in the
Constitution and in section 6.”
Constitution and in section 6.”
14 (2017) 38 ILJ 2565 (LC)
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[22] The narrow compass interpretation of the phrase “… any other arbitrary
grounds…” in section 6(1) was also endorsed in Naidoo and Others v Parliament
of the Republic of South Africa15.
[23] On any reading in this matter, the statement of claim does not disclose any of the
specified grounds listed under section 6(1) to support the Applicant’s claim under
section 6(3) . Though it is not apparent from the statement of claim itself,
annexure “C” (which is a CCMA notice of set down for con-arb) to the Applicant’s
statement of case refers to the primary issue being prohibition of unfair
discrimination on arbitrary grounds. Accepting that this is the primary issue, the
next step is to consider whether the Applicant has pleaded a cognizable case.
[24] In considering the exception, I approached the Applicant ’s statement of case on
the settled basis that pleadings must be read as a whole and interpreted
benevolently, with a view to sustaining rather than destroying the cause of action
where reasonably possible. To that end, I have considered whether the
allegations, together with any reasonable inferences that may properly be drawn
from them, disclose the essential elements of a recognized claim in law.
However, even affording the Applicant the most charitable interpretation of the
Applicant’s statement of claim in an attempt to sustain the claim, I am unable to
discern a legally cognizable cause of action from the papers . Accordingly, I find
that the statement of claim does not contain the essential averments necessary
to sustain a legally cognizable cause of action.
[25] The Code of Good Practice on Prevention and Elimination of discrimination and
harassment at the workplace defines harassment as unwanted conduct that is,
inter alia , “ related to one or more of the grounds in respect of which
discrimination is prohibited in terms of section 6(1) of the EEA .” I agree with the
Respondent’s counsel that the Applicant is caught in an inescapable logical bind
Respondent’s counsel that the Applicant is caught in an inescapable logical bind
and that in order to prove a contravention of the Code, the Applicant must first
15 (2020) 41 (ILJ) 1931 (LAC)
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make the allegations necessary to sustain the claim of harassment, which the
statement of claim does not do.
[26] As far as pleadings are concerned, I do not agree with the Respondent ’s
interpretation of La Foy v Department of Justice and Constitutional Development
and Others 16 as far as the Respondent’s claim that the complainant cannot
simply make a bald allegation; they must plead and then prove each of the three
elements listed in section 11 (2) of the EEA. I understand La Foy to simply say
that a cause of action comprises the material facts which give rise to the legal
right asserted. The essential facts ( the facta probanda) must be pleaded, while
the evidentiary material (facta probantia) need not be pleaded.
[27] Accordingly, the exception must be upheld in relation to the first , s econd and
third grounds of exception.
[28] The usual consequence of a successful exception in this Court is the affording of
an opportunity to amend if that is possible. Such an opportunity ought to be
afforded to the Applicant
17.
Costs
[29] In my view, it is appropriate that no cost order be made.
[30] In the premise the following order is made:
Order
1. Grounds 1, 2 and 3 of the Respondent’s exception to the statement of
claim is upheld.
2. Ground 4 of the Respondent’s exception to the statement of claim is
dismissed.
16 (2023) 44 ILJ 2731 (LC).
17 See Naidoo supra, at para 33.
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3. The Applicant is granted leave to amend the statement of claim within ten
(10) days of receipt of this order.
4. Should the Applicant fail to amend the statement of claim within the period
stipulated above, the Respondent may apply for the dismissal of the claim.
5. The Respondent shall deliver its statement of defense within ten (10) days
after receiving the amended statement of claim.
6. There is no order as to costs.
_________________
G. K. Phajane
Acting Judge of the Labour Court of South Africa
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Appearances:
For The Applicant : Mr. Thakudi Motsapi
For The Respondent : Adv. T Mathopo
Instructed by : Mngandi Attorneys Inc.